No obligation for contracting authorities to allow non-selected tenderers to supplement their tenders

In a recent judgment (n° 230 079, 3 February 2015), the Council of State examined the question of whether a contracting authority is obliged in certain circumstances to give non-selected tenderers the opportunity to supplement their tenders with the required documents or data for the selection phase.

The contracting authority, operating in the utilities sector, had organized a negotiated procedure with publication, in which only one tenderer out of seven was selected.

It was claimed that the competition principle, the basis of public procurement regulation, would be breached by the fact that the contracting authority had not given the opportunity to the non-selected tenderers to supplement their tenders. If the contracting authority had allowed that, more tenderers would have been selected and the competition would have been greater.

The Council of State has rejected this argumentation, based on a judgment of 15 October 2009 of the Court of Justice (C-138/08). In the judgement the Court examined the question of whether it is possible to continue the negotiations with just one or two tenderers, notwithstanding that, in accordance with public procurement law, the contracting authority must in principle negotiate with at least three tenderers. The Court judged that this is possible, but only if the number of suitable candidates is less than three. The contracting authority can, in other words, only start the negotiations with one (or two) candidate(s) if only one (or two) candidate(s) is (are) selected.

Moreover, the Council of State noted that public procurement law concerning the utilities did not provide any minimum number for starting the negotiations with tenderers.

However, the Council of State has not opted to interpret the principle of competition, if it even exists, in a way requiring that the contracting authority should have been obliged to give the opportunity to the non-selected tenderers to supplement their tenders. The Council of State considers that the non-selected tenderers themselves fell short of their obligation to submit a tender in a careful manner. The tenderer must therefore not only be vigilant about the execution of the contract and its corresponding price, but must also be vigilant in all administrative formalities related to the selection phase.